Judicial Deference in Foreign Affairs

Judicial Deference in Foreign Affairs

The earlier sections asked which branch holds a given foreign affairs power and how the claims of the branches rank against one another. A different question arises when a person harmed by a presidential act touching foreign relations takes the dispute to court: how closely will the judge examine it? The standard of review often decides the outcome before the merits are fully argued, because a court that probes the President's reasons may strike down an order that a court applying a deferential test would sustain on the same record. This section examines how much deference the judiciary gives when the executive acts in the areas of immigration and foreign affairs.

The leading answer comes from Trump v. Hawaii. A presidential proclamation restricted entry into the United States by nationals of several countries, most of them majority-Muslim, and the government defended it as a national security measure. The challengers pressed two arguments. One was statutory: whether the President stayed within the authority Congress delegated in the immigration laws. The other was constitutional: whether the Establishment Clause invalidates an order that is neutral on its face when statements by the President and his advisers suggest hostility toward Muslims. The Court upheld the order, and its constitutional holding states the general lesson, which is that in immigration and foreign affairs courts accord substantial deference to the political branches and generally apply at most rational basis review.

The two arguments belong together because each asks a court to measure the same executive act against a different source of limits. The statutory question connects to Jackson's categories from earlier in this chapter, since a broad congressional delegation places the President's action at the strong end of that scale and leaves the challenger little room. The constitutional question asks how much a court may inquire into the motives behind an order that has a stated national security purpose. Courts defer here for reasons already familiar from the discussion of recognition and Curtiss-Wright: the executive can speak for the nation with one voice and act on information that cannot be broadcast, and a judge has less ability to test those judgments. The statutory question comes first, and the next subsection takes up the delegated entry power.

Delegated Entry Power

In Trump v. Hawaii the Court held that the President acted within the entry-suspension power that Congress delegated in the Immigration and Nationality Act (INA).¹ The facts show why the dispute arose. The President ordered the Department of Homeland Security and other agencies to evaluate every country's compliance with an information-sharing and risk-assessment baseline, and after that worldwide, multi-agency review he issued a Proclamation restricting the entry of nationals of countries whose practices he found inadequate.² The Proclamation restricted entry by nationals of select foreign countries whose governments' practices deprived the United States of enough information to assess the risks their nationals pose. It imposed country-specific restrictions, included numerous exceptions for various categories of foreign nationals, and created a waiver program open to all covered foreign nationals seeking entry as immigrants or nonimmigrants.³

The plaintiffs were the State of Hawaii, three individuals with relatives abroad who were affected, and the Muslim Association of Hawaii, and they argued that the Proclamation violated both the INA and the Establishment Clause. The district court entered a nationwide preliminary injunction, and the Ninth Circuit affirmed on two statutory grounds without reaching the constitutional claim. The first ground was that the Proclamation exceeded the entry-suspension power in § 1182(f). The second was that it violated § 1152(a)(1)(A), the INA's ban on nationality discrimination in the issuance of immigrant visas.⁴ The Supreme Court did not first decide whether a court may hear such statutory claims at all. Consular nonreviewability is a doctrine that shields visa decisions by consular officers from judicial review, and it might have barred the claims. The Government did not argue that the doctrine limits the Court's jurisdiction and pointed to no INA provision that expressly strips jurisdiction, so the Court assumed without deciding that the claims were reviewable and went to the merits.⁵ The case therefore leaves the reviewability question open.

The delegation itself sits in § 1182(f), which provides: "Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate."⁶ The Court read that text as deferring to the President in every clause, because it commits four separate decisions to him.⁷

• Whether and when to suspend entry, since the power arises whenever the President finds detriment to the national interest.
• Whose entry to suspend, which may be all aliens or any class of them.
• For how long, which is for whatever period the President deems necessary.
• On what conditions, which may be any restrictions he considers appropriate.

The only precondition the text sets is that the President find that the entry of the covered aliens would be detrimental to the interests of the United States, and the Court held that the President had met it.⁸ The finding came at the end of a process. The President first ordered the Department of Homeland Security and other agencies to evaluate every country's compliance with an information-sharing and risk-assessment baseline. The Proclamation then set out extensive findings that deficiencies in certain foreign governments' practices deprived the United States of enough information to assess the risks their nationals pose. From those findings the President concluded that restricting entry of people who cannot be vetted adequately served the national interest, both by protecting security and by inducing those governments to improve, and the Proclamation tailored country-specific restrictions to that aim.⁹

The reason the statute is written this way lies in what it governs. Whether to restrict entry usually depends on conditions that shift quickly and abroad, such as a foreign government that stops sharing records about its nationals, and a statute that fixed the trigger, the covered group, the duration, and the conditions in advance would force Congress to legislate again each time the facts changed. The executive also holds the information that bears on those judgments, and some of it is classified. The Proclamation itself states that it does not disclose every ground for its country-specific restrictions, because describing them all publicly would damage national security.¹⁰ A court that demanded a persuasive public justification would be asking for something the executive may be unable to give, and would be replacing the President's judgment with its own on matters where the judge has the least information. This is one application of the general rule that in immigration and foreign affairs courts accord substantial deference to the political branches.

The plaintiffs attacked the sufficiency of the findings in two ways. They said the Proclamation gave no persuasive reason why nationality alone makes someone a security risk, and they discounted the vetting concern because the Proclamation lets many people from the covered countries enter on nonimmigrant visas.¹¹ The Court answered that both arguments assume the statute requires the President to explain his finding in enough detail to enable judicial review, and it called that premise questionable.¹² Even assuming some inquiry is appropriate, the Court found the findings adequate. The twelve-page Proclamation describes the process, the agency evaluations, and the recommendations behind the restrictions, and it was more detailed than any earlier order under § 1182(f). By comparison, President Clinton's 1996 proclamation suspending entry of Sudanese officials gave its reason in a single sentence.¹³ A request for a searching inquiry into how persuasive the justification is also conflicts with the broad text and with the deference traditionally given the President. Whether his chosen method is wise policy is irrelevant to the scope of his authority, and a President who adopts a preventive measure in the area of national security need not conclusively link every piece of the puzzle before courts give weight to his empirical conclusions.¹⁴

The statute's use of the word suspend drew a separate challenge. The plaintiffs argued that to suspend usually means to defer until later, so the power covers only temporary measures with a defined end. The Court agreed that the word often carries that sense but held that it does not require the President to fix an end date in advance. The statute authorizes suspension for such period as he deems necessary, and that language lets him tie the duration to the resolution of the condition that triggered the restriction.¹⁵ Earlier Presidents had done exactly that, for example by suspending the entry of certain Panamanian nationals until democracy was restored in Panama, and none of the 43 suspension orders issued before this litigation specified a precise end date.¹⁶ The Proclamation fits that pattern, because its conditional restrictions remain in force only so long as necessary to address the identified inadequacies and risks.¹⁷

The statute also limits the President to suspending the entry of a class of aliens, and the Court held that the word class comfortably covers a group of people linked by nationality.¹⁸ The reading fits the problem the Proclamation addressed, which was a foreign government's failure to share reliable information about its own nationals. That failure affects the government's nationals as a group, so nationality tracks the deficiency the President found. Presidents have repeatedly suspended entry on the basis of nationality, which confirms that reading.¹⁹

The plaintiffs also argued that § 1152(a)(1)(A) forbids discrimination in the issuance of immigrant visas because of nationality, place of birth, or place of residence, so a nationality-based entry restriction contradicts it.²⁰ The Court rejected the argument by separating two questions that the INA treats separately. Section 1182 defines the universe of aliens who are admissible and therefore eligible to receive a visa. Section 1152(a)(1)(A) operates after those boundaries are set, and it forbids nationality discrimination in how immigrant visas are allocated among people who fall inside them.²¹ The nondiscrimination provision is thus directed at visa issuance, and had Congress meant to restrict the President's power to decide who may enter, it could have used language aimed at that end. The plaintiffs' reading also produces results that are hard to accept, because it would bar the President from suspending entry from particular countries in response to an epidemic, or even when the nation stood on the brink of war.²² The Court added that the plaintiffs had identified no other conflict between the Proclamation and the INA's scheme that would implicitly bar the President from addressing gaps in vetting. The existing grounds of inadmissibility and the narrow Visa Waiver Program do not address a country's failure to provide a minimum baseline of reliable information, and neither the legislative history of § 1182(f) nor historical practice justified departing from its clear text.²³

The delegation is broad, but it sits inside the INA, and the inquiry the Court ran on § 1152(a)(1)(A) and on the INA's grounds of inadmissibility shows where a real limit would come from. A limit exists only if Congress wrote one elsewhere in the statute.

A broader objection stands behind these statutory arguments, which is that giving the President this much discretion hands him lawmaking power that Article I vests in Congress. The nondelegation doctrine forbids Congress from transferring legislative power without limits, but the modern test asks only whether Congress supplied an intelligible principle to guide the executive's discretion, and courts have almost never second-guessed Congress on how much policy judgment may be left to those who carry out the law.²⁴ The reason is practical. Congress lacks the time and expertise to write detailed rules for every area it regulates, delegation lets it enlist the other branches, and nearly every statute leaves some policy judgments to those who execute it, so the question is one of degree.²⁵ The standard in § 1182(f), entry that would be detrimental to the interests of the United States, looks open-ended yet readily satisfies that generous test.²⁶ The setting also matters, because, as the discussion of Curtiss-Wright showed, Congress may leave the President broader discretion in external affairs than in domestic regulation.

Justice Thomas joined the Court's opinion but would have gone further. He read § 1182(f) as setting no judicially enforceable limits on the President at all and added that the President has inherent authority to exclude aliens.²⁷ That is a concurring view, and the majority's reasoning rests on the text of the delegation and on the absence of any conflicting statutory provision.

In the vocabulary of Jackson's framework from earlier in this chapter, a proclamation issued under an express statutory delegation sits in the first category, where presidential power is at its maximum. That placement explains why the challengers had so little room. They needed to find a contrary limit in the statute, and they found none. A fact pattern that recites a multi-agency review, a finding of detriment, a class defined by nationality, and a restriction lasting only while the problem persists describes a lawful use of § 1182(f).

Rational Basis Review

The statutory holding left the constitutional claim undecided, and that claim asked for something different. The challengers argued that the Proclamation violated the Establishment Clause because hostility toward Muslims motivated it, and they offered statements by the President and his advisers as proof. The Court began by noting three ways in which this case departs from the conventional Establishment Clause suit. The plaintiffs seek to invalidate a national security directive regulating the entry of aliens abroad, where the usual case involves a religious display or school prayer. The Proclamation is facially neutral toward religion. And the plaintiffs ask the Court to test the sincerity of the stated justifications through extrinsic statements, many made before the President took the oath of office.²⁹ Each difference bears on how closely a court may look, so together they fix the standard of review before the merits are reached.

The case for a deferential standard begins with who controls admission. The Court has long described the admission and exclusion of foreign nationals as a "fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control."³⁰ Decisions about who may enter can affect relations with foreign powers and often turn on classifications drawn in light of changing political and economic circumstances, so they usually suit Congress or the President better than a court.³¹ Deeper judicial probing would create two structural problems. Inquiry into national security intrudes on the President's constitutional responsibilities in foreign affairs, which raises separation-of-powers concerns, and courts have marked limits in collecting evidence and drawing inferences about security threats.³² Justice Harlan reached a similar view in his dissent in New York Times Co. v. United States, reasoning that the separation of powers narrowly restricts the judicial function in reviewing the Executive's foreign affairs activity, though he added that constitutional considerations forbid "a complete abandonment of judicial control."³³ That qualification anticipates the form of review used here, which is narrow yet real.

Within that setting the Court has applied a circumscribed form of review when a visa denial is said to burden the constitutional rights of a United States citizen. In Kleindienst v. Mandel, the Attorney General refused admission to Ernest Mandel, a Belgian journalist invited to speak at Stanford, and the professors who wished to hear him argued that the denial violated their First Amendment right to receive information. The Court acknowledged that the right was implicated but limited its review to whether the Executive gave a "facially legitimate and bona fide" reason, and it held that courts would neither look behind the exercise of that discretion nor balance its justification against the citizens' interests.³⁴ Later opinions have applied the same standard in different contexts. Justice Kennedy's concurrence in Kerry v. Din treated a bare statutory citation as enough to explain a visa denial, and Fiallo v. Bell applied Mandel to a categorical congressional policy that classified by sex and legitimacy, because a court should not probe and test the justifications for immigration policies of that kind.³⁵ The Court stressed that this narrow standard has particular force where immigration overlaps with national security, for the two reasons already given.

A conventional application of Mandel, asking only whether the policy is facially legitimate and bona fide, would have ended the case, because the Proclamation recites a security purpose on its face. The Court did not stop there. The Government itself suggested that the inquiry might reach beyond facial neutrality, so the Court assumed that it could look behind the face of the Proclamation to the extent of applying rational basis review, and it said it need not define the precise contours of the Mandel inquiry.³⁶ The standard is therefore assumed for purposes of this decision, and the exact reach of Mandel review stays undefined. Rational basis review asks whether the entry policy is plausibly related to the Government's stated objective of protecting the country and improving vetting processes. The Court may consider the plaintiffs' extrinsic evidence, but it will uphold the policy so long as it "can reasonably be understood to result from a justification independent of unconstitutional grounds."³⁷ The test lets campaign-era statements into the record while limiting their power to defeat the policy. If a legitimate security explanation can reasonably account for the order, evidence of hostility from the officials who issued it does not by itself invalidate it.

Applying that test, the Court noted that when it has struck down a policy under rational basis scrutiny, a common thread has been that the laws were divorced from any factual context from which a relationship to legitimate interests could be discerned, as in Romer v. Evans.³⁸ The Proclamation does not fit that pattern. It is expressly premised on legitimate purposes and says nothing about religion, its restrictions on Muslim-majority nations are limited to countries previously designated by Congress or prior administrations as posing national security risks, and it reflects a worldwide review conducted by multiple Cabinet officials and their agencies.³⁹ The plaintiffs attacked the policy's effectiveness and wisdom, and the Court answered that it cannot substitute its own assessment for the Executive's predictive judgments about security.⁴⁰ Three further features supported the Government's claim of a legitimate security interest:

• Since the President introduced entry restrictions in January 2017, three Muslim-majority countries (Iraq, Sudan, and Chad) have been removed from the list.
• For the countries still covered, the Proclamation includes numerous exceptions for various categories of foreign nationals.
• The Proclamation creates a waiver program open to all covered foreign nationals seeking entry as immigrants or nonimmigrants.

The Court concluded that the Government had set forth a sufficient national security justification to survive rational basis review.⁴¹ Those features matter because they show a policy that responds to changing facts, is tailored to its stated aim, and allows individual relief, and a measure driven only by hostility to a religion would have little reason to contain them.

Justice Kennedy joined the opinion in full and added a reminder about what deference leaves intact. He observed that the Court acknowledges some governmental action may be reviewable to determine whether it is "inexplicable by anything but animus," and he left to the lower courts on remand whether proceedings could continue, noting that any discovery must not intrude on the Executive's foreign affairs power.⁴² He then observed that many statements and actions of officials escape judicial scrutiny without freeing those officials to disregard the Constitution, because the oath to adhere to it is not confined to the spheres in which courts can correct what officials do.⁴³ Broad discretion free from judicial scrutiny, in his view, makes it more imperative for the official to follow the Constitution. Deference thus limits what courts will do and leaves what officials owe unchanged. Justice Thomas, also joining the Court, would have rejected the dissent's premise at its root, since he wrote that the Establishment Clause creates no individual right to be free from every law a reasonable observer views as religious or antireligious.⁴⁴

Two dissents rejected the majority's framework, and what separates them from the majority is which feature of the case controls the standard. Justice Sotomayor, joined by Justice Ginsburg, criticized the majority for applying a watered-down standard to short-circuit the Establishment Clause claim.⁴⁵ She argued that Mandel and Din are distinguishable because each concerned the exclusion of a single foreign national under a specific statutory ground of inadmissibility, while the Proclamation is a categorical order affecting millions, and because neither case purported to set the framework for claims of unconstitutional purpose, where facial neutrality is not determinative.⁴⁶ She added that even if Mandel applied, Din would allow a court to look behind the order on an affirmative showing of bad faith, which she found in the President's instruction to subordinates to find a legal way to enact a Muslim ban.⁴⁷ Her own approach would instead apply the free-ranging "reasonable observer" inquiry used in other Establishment Clause cases, which looks past a policy's facial neutrality.⁴⁸ The majority replied that the dissent would review immigration policies, diplomatic sanctions, and military actions under the "reasonable observer" inquiry used for holiday displays and graduation ceremonies, and that a circumscribed inquiry applies to any constitutional claim concerning the entry of foreign nationals.⁴⁹ Justice Breyer, joined by Justice Kagan, wrote the second dissent, which also declined to accept the majority's disposition of the claim.⁵⁰ The majority lets the foreign affairs setting dictate the standard whatever the constitutional clause, while the dissenters let the Establishment Clause claim dictate it.

On an exam, the stem to watch for combines a facially neutral entry restriction, a stated national security purpose, and plaintiffs who offer statements showing hostility toward a religion. The answer applies deferential review and asks whether the policy can reasonably be understood to rest on a justification independent of unconstitutional grounds, and the statements are weighed without ending the inquiry. An answer that applies the reasonable-observer test borrowed from holiday-display cases uses the standard the majority rejected for this setting. The better answer also notes that rational basis review was assumed rather than defined, and that the dissenters would have used the freer inquiry.